Citation Nr: 18141057 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 16-12 782 DATE: October 9, 2018 ORDER New and material evidence having been received, the application to reopen the claim of entitlement to service connection for posttraumatic stress disorder (PTSD) is granted. REMANDED Service connection for an acquired psychiatric disorder, to include PTSD, is remanded. FINDINGS OF FACT 1. The Veteran served on active duty from April 1975 to December 1975. 2. A final January 2007 rating decision denied service connection for PTSD; evidence received since that time is new and raises a reasonable possibility of substantiating the claim. CONCLUSION OF LAW Evidence received to reopen the claim of entitlement to service connection for PTSD is new and material and the claim is reopened. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Prior unappealed rating decisions may not be reopened absent the submission of new and material evidence warranting revision of the previous decision. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. “New” evidence means evidence “not previously submitted to agency decisionmakers.” “Material” evidence means “evidence that, by itself or when considered with previous evidence of record, related to an unestablished fact necessary to substantiate the claim.” 38 C.F.R. § 3.156(a). In order to be “new and material” evidence, the evidence must not be cumulative or redundant, and “must raise a reasonable possibility of substantiating the claim,” which has been found to be enabling, not preclusive. See Shade v. Shinseki, 24 Vet. App. 110 (2010). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1991). Historically, this service connection claim was denied in a January 2007 rating decision. The Veteran did not appeal this decision or submit documentation constituting new and material evidence within the one-year appeal period, such that the January 2007 rating decision became final. The Veteran requested to reopen this claim in March 2013. Thus, the Board must now determine whether new and material evidence has been received since the January 2007 decision to enable the reopening of the claim. In this respect, evidence considered at the time of the final January 2007 rating decision included: service treatment records (STRs); service personnel records (SPRs); and VA treatment records spanning November 2005 to December 2006. Evidence added to the claims file since that time includes: updated VA treatment records through February 2016; April 2015 and June 2016 private treatment letters; and multiple supporting lay statements. This evidence is new as it was not of record at the time of the final January 2007 rating decision. This evidence further qualifies as material because it raises a reasonable possibility of substantiating the claim. In January 2007, the claim was denied upon the Regional Office’s determination that the evidence did not establish the existence of the claimed disorder or a nexus to service. Here, the newly submitted private treatment letters diagnose the Veteran with multiple current psychiatric disorders, including PTSD. These letters, in conjunction with additional lay statements, also establish a possible nexus to service including a claimed military sexual trauma. Thus collectively, the new evidence establishes a diagnostic history and several theories of entitlement that were not for consideration at the time of the January 2007 rating decision. Accordingly, new and material evidence having been received, the application to reopen the claim for service connection for an acquired psychiatric disorder, to include PTSD, is granted. REASONS FOR REMAND For the following reasons, the Board finds that the issue on appeal must be remanded to ensure that the Veteran is accorded full compliance with the statutory duty to assist. As noted above, the Veteran was previously denied service connection for PTSD, however the Board is expanding the scope of his claim to include all acquired psychiatric disorders based upon the evidence of record. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). An April 2015 private treatment letter identifies a possible military sexual trauma. However, no efforts have been made to develop this as a possible stressor related to the Veteran’s psychiatric disorder. Such efforts must now be undertaken, to include providing the Veteran with the opportunity to submit VA Form 21-0781a. Once the above development has been completed, a VA examination is warranted such that an opinion regarding the Veteran’s current diagnosis and a possible link to service may be obtained. The matter is REMANDED for the following actions: 1. Contact the Veteran in order to have him identify the names and addresses of all health care providers who have treated him for the issues on appeal. The Veteran should also be notified that he may submit evidence or treatment records to support his claim. The Board is particularly interested any outstanding records of VA medical treatment (generated after the last treatment notes of record) and records from the Veterans Service Outreach Program and Dr. R. Figueroa. The AOJ should attempt to obtain any such records. All efforts to obtain such records should be documented in the claims folder. All available records should be associated with the Veteran’s VA claims folder. 2. Take appropriate action to develop the claimed stressor of a military sexual trauma, to include providing the Veteran with VA Form 21-0781a for submission. 3. Thereafter, schedule the Veteran for a psychiatric examination. The claims file must be made available to the examiner. Any indicated special diagnostic tests that are deemed necessary for an accurate assessment should be conducted. The examiner is asked to address the following: a. Identify all psychiatric disorders that have existed during the pendency of this appeal (noting that a PTSD diagnosis must be offered in accordance with DSM criteria); b. For each diagnosed disability, indicate whether it is at least as likely as not (50 percent probability or more) that it began in service, was caused by service, or is otherwise related to service, to include the claimed military sexual trauma. In formulating the opinions, the examiner is advised that the term “at least as likely as not” does not mean “within the realm of possibility.” Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. A complete rationale should be provided for all opinions or conclusions expressed. It should be noted that the Veteran is competent to attest to observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. 4. After undertaking any additional development deemed appropriate, and giving the Veteran full opportunity to supplement the record, adjudicate the Veteran’s pending claim in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a Supplemental Statement of the Case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. M. Donohue Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Kovarovic, Associate Counsel